Miсhael H. RESH, On Behalf of Himself and All Others Similarly Situated; William Schoenke; Heroca Holding, B.V.; Ninella Beheer, B.V., Plaintiffs-Appellants, v. CHINA AGRITECH, INC.; Yu Chang, Company‘s CEO, President, Secretary, and Chairman of the Board; Yau-Sing Tang, aka Gareth Tang, Company‘s Chief Financial Officer; Gene Michael Bennett, Director of CAGC; Xiao Rong Teng, Director of CAGC; Ming Fang Zhu; Lun Zhang DaI, Director of CAGC; Charles Law, aka Charles C. Law, aka Charles Chien-Lee Law, aka Charles Chien-Lee Loh, aka Chien-Lee C. Loh, Director of CAGC; Zheng Wang, Director of CAGC, Defendants-Appellees.
No. 15-55432
United States Court of Appeals, Ninth Circuit.
May 24, 2017
Argued and Submitted December 5, 2016, Pasadena, California
Given that genuine disputes of material fact persist in the record, the district court should not have granted summary judgment to either party. See Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003). On remand to the district court to review the validity of Santopietro‘s arrest under the appropriate First Amendment constraints, the district court—by a jury trial, of course, if properly requested—should first resolve the factual dispute concerning whether Santopietro made the statement regarding deletion of the photo. If she did, the trier of fact should additionally resolve the factual disputes as to the nature of her statement and then determine whether Santopietro‘s actions demonstrate a quid-pro-quo offer for services properly subject to analysis as a commercial speech regulation. If so, the district court should conduct that analysis and decide whether the licensing requirement under
CONCLUSION
The district court erred by deciding that the Officers had probable cause to arrest Santopietro despite the First Amendment protections afforded to her expressive association with Patrick. We therefore reverse the grant of summary judgment to the Officers. As to the denial of partial summary judgment to Santopietro, we remand for a determination after trial of the disputed factual issues and for consideration in light of this opinion as to whether, on the fаcts thus determined, Santopietro was validly arrested for her own statements and actions.
REVERSED, IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Seth Aronson (argued), Brittany Rogers, and Michelle C. Leu, O‘Melveny & Myers LLP, Los Angeles, California; Abby F. Rudzin, O‘Melveny & Myers LLP, New York, New York; for Defendants-Appellees.
Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs bring a would-be class action alleging that China Agritech, Inc. (“China Agritech“) and its managers and directors violated the
For the reasons that follow, we hold that plaintiffs are not time-barred from bringing a class action.
I. Background
China Agritech is a holding company incorporated in Delaware with its principal place of business in Beijing, China. The company claims to operate through various subsidiaries that manufacture and sell organic compound fertilizers and related products to farmers in twenty-eight Chinese provinces. China Agritech began listing its shares on the NASDAQ Stock Exchange in 2005. In a 2009 filing with the U.S. Securities and Exchange Commission (“SEC“), China Agritech reported a net revenue of $76 million, which was triple the $25 million in revenue it reported for 2005.
On February 3, 2011, LM Research, a market research company, published a report entitled “China Agritech: A Scam” (“LM Report“). The report, written by individuals who held a short position in China Agritech stock, asserted that China Agritech was “not a currently functioning business that [was] manufacturing products,” but instead was “simply a vehicle for transferring shareholder wealth from outside investors into the pockets of the founders and inside management.” Alleging idle factories, minimal investments, and fictitious contracts, the report concluded that China Agritech had “grossly inflated its revenue, failed to account for tens of millions of investor dollars, and [had] virtually no product in the market.” Upon release of the LM Report, China Agritech‘s shares declined from $10.78 per share on February 2, 2011, to $9.85 per share on February 3, 2011.
China Agritech denied the allegations in an eight-page letter to shareholders. On February 15, 2011, Bronte Capital, a hedge fund that also held a short position in China Agritech stock, responded to China Agritech‘s letter in an article sarcastically titled, “China Agritech: China‘s amazing productivity levels” (“BC Article“). The BC
On March 13, 2011, China Agritech announced the formation of a Special Committee of its Board of Directors to investigate the allegations of fraud. The next day, China Agritech dismissed its independent auditor, Ernst & Young Hua Ming (“E&Y“), and publicly disclosed that E&Y had insisted, in December 2010, that the board commence an investigation of accounting problems it had previously identified. Also on March 14, 2011, NASDAQ halted trading in China Agritech stock and initiated delisting proceedings. On October 17, 2012, the SEC issued an enforcement order revoking the registration of China Agritech stock.
II. Procedural History
A. The Dean Action
On February 11, 2011, Theodore Dean, оn behalf of himself and all others similarly situated, filed a would-be class action against China Agritech and several of its managers and directors. See Dean v. China Agritech, Inc., Case No. 2:11-cv-1331-RGK-PJW, 2011 WL 607174 (C.D. Cal.) (the “Dean Action“). Dean alleged that China Agritech had materially misstated its net revenue and income for the third quarter in 2009 on its SEC Form 10-Q filing, and had materially misstated its net revenue and income for fiscal years 2008 and 2009 in its 2009 SEC Form 10-K filing. The complaint was filed eight days after release of the LM Report. The case was assigned to Judge Klausner in the Central District of California.
On the same day that the Dean Action was filed, Dean‘s counsel notified China Agritech shareholders of the class аction through two global media platforms, Business Wire and GlobeNewswire, inviting shareholders to come forward and serve as lead plaintiff. He repeated the notification a week later. See
On June 22, 2011, Dean filed an Amended Complaint with four additional named plaintiffs and two additional defendants. The amended Dean Action alleged claims for violations of: (1) Section 10(b) of the Exchange Act and SEC Rule 10b-5 by China Agritech and all individual defеndants; (2) Section 20(a) of the Exchange Act by the individual defendants; (3) Section 11 of the
On January 6, 2012, the Dean plaintiffs moved for class certification on behalf of all persons or entities that had acquired China Agritech stock between November 12, 2009 and March 11, 2011. On May 3, 2012, the district court denied their motion. The court concluded that although the Dean plaintiffs had satisfied all four requirements of Rule 23(a), they failed to establish the predominance requirement of
The Dean plaintiffs appealed the denial of certification under Rule 23(f). On August 8, 2012, we affirmed. See Dean v. China Agritech, Inc., Case No. 12-80120 (9th Cir.), Dkt. No. 5. The Dean plaintiffs continued litigating their cases as individuals. They settled their individual claims on September 14, 2012. Based on the settlement, their individual claims were dismissed with prejudice on September 20, 2012.
B. The Smyth Action
On October 4, 2012, three weeks after the Dean Action settled, Kevin Smyth filed an almost identical class-action complaint on behalf of the same would-be class against China Agritech in federal District Court for the District of Delaware. See Smyth v. Chang, Case No. 1:12-cv-01262-RGA, 2012 WL 4963062 (D. Del.) (the “Smyth Action“). The Smyth and Dean Action complaints differed only in that the Smyth Action alleged solely Exchange Act violations and did not name several of the defendants that had bеen named in the Dean Action. The Smyth Action was filed one year and eight months after the LM Report was published.
On December 7, 2012, following notification of the Smyth Action on Business Wire, pursuant to the PSLRA, eight shareholders sought appointment as lead plaintiff and approval of their selection of lead counsel. The Smyth Action was subsequently transferred to the Central District of California, where it was deemed related to the Dean Action and assigned to Judge Klausner (Case No. 2:13-cv-3008-RGK-PJW (C.D. Cal.)). On July 18, 2013, plaintiffs in the Smyth Action filed an amended complaint with several additional named plaintiffs. On August 5, 2013, the Smyth plaintiffs moved for class certification.
On September 26, 2013, the district court denied the motion. The court found that the Smyth plaintiffs’ personal claims failed the typicality requirement of Rule 23(a)(3) because their prior relationship with named plaintiffs in the Dean Action subjected them to a claim preclusion defense that was not available against unnamed class members. The court further held that the Smyth plaintiffs and their counsel failed to meet the adequate representation requirement of Rule 23(a)(4). The court noted that plaintiffs had failed to modify their lead plaintiff certifications that had been signed twenty-nine months earlier in connection with the Dean Actiоn, and had served only one defendant ten months after filing Smyth.
On January 8, 2014, the parties to the Smyth Action agreed to dismiss the action with prejudice as to the named plaintiffs.
C. The Resh Action
On June 30, 2014, Michael Resh filed a would-be class action against China Agritech and several individual defendants (the “Resh Action“). On September 4, 2014, Resh filed an amended complaint with several additional named plaintiffs. The Resh plaintiffs alleged violations of Sections 10(b) and 20(a) of the Exchange Act based on the same facts and circumstances, and on behalf of the same would-be class, as in the Dean and Smyth Actions. The case was assigned, like the others, to Judge Klausner.
On December 1, 2014, the district court granted China Agritech‘s and Defendant Law‘s motions to dismiss without leave to amend (“December 2014 Order“). Plaintiffs had argued that their would-be class action was timely because American Pipe tolled the statute of limitations during the pendency of the Dean and the Smyth actions. With tolling, 804 of the 1243 days that had elapsed since the release of the LM Report were subtracted, meaning that only 439 days counted towards the two-year statute of limitations. The district court disagreed. It concluded that while the Supreme Court in American Pipe and Crown, Cork & Seal held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class, and that a class member may therefore file a separate individual action prior to the expiration of his or her own limitations period, the Supreme Court had not yet determined whether American Pipe allowed tolling for an entirely new class action based upon a substantially identical class. Relying principally on Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987), and Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc), the district court concluded that the statute of limitations was tolled for the individual claims of the named plaintiffs in the Resh Action, but was not tolled for plaintiffs’ would-be class аction. In the view of the district court, a contrary ruling “would allow tolling to extend indefinitely as class action plaintiffs repeatedly attempt to demonstrate suitability for class certification on the basis of different expert testimony and/or other evidence.”
On December 19, 2014, the Resh plaintiffs sought reconsideration, arguing that the court had denied class certification in the Dean and Smyth Actions due to issues related to the lead plaintiffs’ suitability as class representatives rather than the claims’ suitability for class treatment. On January 7, 2015, the district court dismissed the remaining defendants (“January 2015 Order“). On February 23, 2015, it denied plaintiffs’ mоtion for reconsideration (“February 2015 Order“), explaining that “Plaintiffs’ class action claims were time-barred regardless of the grounds on which class certification was denied in the two earlier actions.”
The Resh plaintiffs appealed, challenging the district court‘s October 2014, December 2014, January 2015, and February 2015 Orders.
III. Standard of Review
We review de novo a district court‘s order dismissing a suit on statute of limitations grounds. Sharkey v. O‘Neal, 778 F.3d 767, 770 (9th Cir. 2015).
IV. Jurisdiction
We have jurisdiction under
Defendants also assert that under
V. Discussion
We must decide whether the would-be class action brought by the Resh plaintiffs is time-barred. It is undisputed that the earlier Dean and Smyth Actions were timely. It is also undisputed that, under American Pipe and Crown, Cork & Seal, the statute of limitations for the individual claims of would-be class members in the Dean and Smyth Actions was tolled during the pendency of both of those actions. That is, there is no time bar to individual claims brought by plaintiffs who were unnamed class members in the Dean and Smyth Actions, whether brought as separate or joined claims. The question before us is whether plaintiffs’ would-be class action, based on those same claims, is time-barred.
A. American Pipe and Crown, Cork & Seal
The Supreme Court has twice addressed tolling issues arising out of the dismissal of a would-be class action when no class has been certified. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Court held that unnamed members of an uncertified class could intervene as individual plaintiffs in the individual suit that remained even if the statutory limitations period had passed. Id. at 550-56, 94 S.Ct. 756. According to the Court, “the commencement of the original class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553, 94 S.Ct. 756. The Court characterized its tolling rule as serving policies underlying statutes of limitations as well as class actions. Recognizing that limitations periods serve “[t]he policies of ensuring essential fairness to defendants and of barring a plaintiff who ‘has slept on his rights,‘” id. at 554, 94 S.Ct. 756, the Court concluded that such policies would be vindicated when a named plaintiff “commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” Id. at 554-55, 94 S.Ct. 756. Not permitting tolling would frustrate the goal of Rule 23 to promote economy in litigation because, absent tolling, “[p]otential class members would be induced to file protective motions
In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court extended American Pipe to permit tolling not only for individual intervention in the named plaintiffs’ original suit, but also for individual filing of entirely new suits. The Court wrote that many of “the same inefficiencies [discussed in American Pipe] would ensue if American Pipe‘s tolling rule were limited to permitting putative class members to intervene after the denial of class certification.” Id. at 350, 103 S.Ct. 2392. Specifically, if the statute of limitations for new individual claims were not tolled, “[t]he result would be a needless multiplicity of actions—precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.” Id. at 351, 103 S.Ct. 2392. Because the commencement of a class suit already “put[s] defendants on notice of adverse claims,” the goals underlying statutes of limitations would not be undermined by a broader tolling rule. Id. at 352, 103 S.Ct. 2392. The Court concluded, “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. 2392.
B. Catholic Social Services and Later Cases
Under American Pipe and Crown, Cork & Seal, it is clear that the individual claims of the would-be class members in the Resh Action have been tolled during the pendency of earlier class actions. Those class members may intervene in existing individual suits, or may bring entirely new individual suits. Plaintiffs bringing new suits may sue either separately or jointly. American Pipe and Crown, Cork & Seal leave open the question whether such plaintiffs may bring a new suit as a class action.
In a short opinion published thirty years ago, we held that “the pendency of a class action [does not] toll[] the applicable statutes of limitation for a subsequently filed class action.” Robbin v. Fluor Corp., 835 F.2d 213, 213 (9th Cir. 1987). Relying principally upon a Second Circuit opinion, we concluded that “extend[ing] tolling to class actions ‘tests the outer limits of the American Pipe doctrine and ... falls beyond its carefully crafted parameters into the range of abusive options.‘” Id. at 214 (citing Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987)). In Korwek, our sister circuit had held that “the tolling doctrine enunciated in American Pipe does not apply to permit a plaintiff to file a subsequent class action following a definitive determination of the inappropriateness оf class certification.” 827 F.2d at 879. Its rationale was that “[t]he Supreme Court in American Pipe and Crown, Cork & Seal certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.” Id.
We modified Robbin in 2000. In Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc), the district court had certified a class, but an intervening change in the law eliminated subject matter jurisdiction over the claims of the named plaintiffs. Id. at 1143-44. New plaintiffs then brought a second class action based on the same underlying facts against the same institutional defendants. Id. at 1144. The question before us was whether the pendency of the prior class action tolled the statute of limitations for the second action. Id. at 1145. We held that it did. Id. at 1149. In so holding, we clarified the analytic structure in which the
There is no dispute that if members of the class ... had filed individual actions after the dismissal of their class action, the statute of limitations would have been tolled for those individual actions.... The only question in this case is whether those same plaintiffs should be permitted to aggregate their individual actions into a class action. Strictly speaking, this is not a statute of limitations question at all. It is, rather, a question of whether plaintiffs whose individual actions are not barred may be permitted to use a class action to litigate those actions.
Id. at 1147 (emphasis added).
Defendants read our opinion in Catholic Social Services as denying tolling for plaintiffs in certain categоries of class action denials. They rely principally on a passage in which we wrote, “If class action certification had been denied in [an earlier case], and if plaintiffs in this action were seeking to relitigate the correctness of that denial, we would not permit plaintiffs to bring a class action.” Id. Two of our sister circuits may have read Catholic Social Services similarly. See Yang v. Odom, 392 F.3d 97, 107 (3d Cir. 2004) (”Catholic Social Services can be read as authority for our holding that class claims should be tolled where the district court denies class certification based on deficiencies of a class representative, and not on the validity of the class itself.“); Great Plains Tr. Co. v. Union Pac. R.R. Co., 492 F.3d 986, 997 (8th Cir. 2007) (“Whether the American Pipe rule applies to subsequent class actions ... depends on the reasons for the denial of certification of the predecessor action.“).
This is a misreading of Catholic Social Services. We did indeed write that “we would not permit plaintiffs to bring a class action” if they sought to serially relitigate a previous denial of certification. 232 F.3d at 1147. However, we did not write that the availability of a subsequent class action depended on general tolling principles. Rather, its availability depended on the operation of preclusion and preclusion-related principles. See id. For example, if plaintiffs in Catholic Social Services had been named plaintiffs in the earlier suit, if an issue relating to the propriety of the class action had been resоlved against them, if their earlier suit had been dismissed with prejudice based on that ruling, and if plaintiffs had then sought to bring a new class action raising that same issue, they would have been barred by issue preclusion from raising that issue.
Three recent Supreme Court decisions have confirmed this view. First, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), the Court rejected an argument by defendant Allstate that only certain categories of claims are eligible for class treatment under Rule 23. The Court wrote:
There is no reason ... to read Rule 23 as addressing only whether claims made eligible for class treatment by some оther law should be certified as class actions. Allstate asserts that Rule 23 neither explicitly nor implicitly empowers a federal court “to certify a class in each and every case” where the Rule‘s criteria are met. But that is exactly what Rule 23 does[.]
Id. at 399, 130 S.Ct. 1431 (emphases in original and internal citation omitted). Shady Grove directs us, for purposes of class certification, to look only to the criteria of Rule 23 and not to “some other law.” There is nothing in the certification criteria of Rule 23 that tells us to look to whether the statute of limitation has, or has not, been tolled. That is, the statute of
After Shady Grove, the Seventh Circuit exрlicitly adopted our general approach in Catholic Social Services in treating the issue of successive would-be class actions as an issue of preclusion rather than tolling. In Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir. 2011), the court held that the overarching inquiry in determining whether prior class actions can toll future class actions is “not the statute of limitations or the effects of tolling, but the preclusive effect of a judicial decision in the initial suit applying the criteria of Rule 23.” Id. at 563. “To the extent that [another court] may believe that Rule 23 must be set aside when a suit‘s timeliness depends on a tolling rule, that view cannot be reconciled with the Supreme Court‘s later decision in Shady Grove ..., which holds that Rule 23 applies to all federal civil suits, even if that prevents achieving some other objective that a court thinks valuable.” Id. at 564.
Second, in Smith v. Bayer Corp., 564 U.S. 299, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011), the Court refused to allow a federal district court to enjoin a state court from certifying a class. The federal court had denied class certification of a class in a would-be class action against Bayer. Id. at 304, 131 S.Ct. 2368. A parallel would-be class action was pending in state court, brought by different named plaintiffs than the named plaintiffs in federal court. Id. at 303, 131 S.Ct. 2368. After the federal court ruled, it enjoined the state court from certifying the class in the case before that court, relying on the “relitigation exception” to the
The Court in Smith acknowledged Bayer‘s argument that “serial relitigation of class certification” was unfair to defendants, and that defendants “would be forced in effect to buy litigation peace by settling.” Id. at 316, 131 S.Ct. 2368 (internal quotation marks omitted). The Court responded that Bayer‘s “form of argument flies in the face of the rule against nonparty preclusion.” Id. Its answer to Bayer‘s concern was that traditional principles of stare decisis and comity, combined with the possibility of removal under the
Two years later, the Sixth Circuit had occasion to apply both Shady Grove and Smith. In Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637 (6th Cir. 2015), with respect to tolling, the Sixth Circuit cited and fol-
Third and finally, in Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S.Ct. 1036, 1046-48, 194 L.Ed.2d 124 (2016), the Supreme Court considered whether class action plaintiffs could usе statistical sampling evidence to prove liability to a class. The Court held that they could, reasoning that “[i]n a case where representative evidence is relevant in proving a plaintiff‘s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class.” Id. at 1046. To hold otherwise would be to “ignore the Rules Enabling Act‘s pellucid instruction that use of the class device cannot ‘abridge ... any substantive right.‘” Id. (quoting
C. Plaintiffs’ Would-be Class Action Is Not Time-barred
We conclude, based on American Pipe and Crown, Cork & Seal, read in the light of Shady Grove, Smith and Tyson Foods, that permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling would advance the policy objectives that led the Supreme Court to permit tolling in the first place. The rule creates no unfair surprise to defendants becausе the pendency of a prior class suit has already alerted them “not only [to] the substantive claims being brought against them, but also [to] the number and generic identities of the potential plaintiffs who may participate in the judgment.” American Pipe, 414 U.S. at 554-55, 94 S.Ct. 756. The rule also promotes economy in litigation by reducing incentives for filing duplicative, protective class actions because “[a] putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations.” Crown, Cork & Seal, 462 U.S. at 350-51, 103 S.Ct. 2392.
We further conclude, based on Smith, that to the degree that оur conclusion may be thought likely to lead to abusive filing of repetitive class actions, the current legal
In light of the above, we conclude that plaintiffs’ class action complaint is not time-barred. Plaintiffs’ individual claims were tolled under American Pipe and Crown, Cork & Seal during the pendency of the Dean and Smyth Actions. So long as they can satisfy the criteria of
Conclusion
We hold that plaintiffs’ class action claims are timely. Because we so hold, we do not reach plaintiffs’ additional arguments. We reverse the district court‘s order of dismissal and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Federico Diego de DIEGO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
No. 13-72048
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 2017, Seattle, Washington
Filed May 26, 2017